Recent Amendments to Practice Direction 28A and the Costs Consequences of Open Offers to Settle in Financial Remedy Proceedings.

Recent amendments to Family Procedure Rules 2010 Practice Direction 28A (PD28A) have helped clarify the Court’s approach to costs in financial remedy proceedings where one party has failed to engage reasonably in negotiations.

The relevant parts of Rule 28.3 have not changed, it is still the case that:
• The general rule in financial remedy proceedings is that the Court will not make an order for one party to pay the costs of another party (r28.3(5))
• The Court may make a costs order where it considers it appropriate to do so because of the conduct of a party in relation to the proceedings (r28.3(6))
• In deciding what order (if any) to make in respect of costs the court must have regard to the list of criteria in r28.3(7) including any open offers to settle.

Previously PD28A did not offer any further assistance to the Judge to decide what weight to give to the fact that open offers had or had not been made when assessing the ‘conduct’ of a party for the purposes of r28.3(6).

The Practice Direction has been amended as of 27th May 2019 to give greater guidance. It now states at para 4.4 that when considering a party’s litigation conduct:
“The Court will take a broad view of conduct for the purposes of this rule and will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which the Court will consider making an order for costs. This includes in a ‘needs’ case where the applicant litigates unreasonably resulting in the costs incurred by each party becoming disproportionate to the award made by the Court. Where an order for costs is made at an interim stage the Court will not usually allow any resulting liability to be reckoned as a debt in the computation of the assets.”

This amendment stops a long way short of the civil procedure style costs consequences where a failure to ‘beat’ an offer made by the other party will frequently mean paying a proportion of the other party’s costs. However it does emphasise that where a party fails to make reasonable open offers to settle they will be at risk of a costs order against them. There is specific encouragement to ensure that ‘needs’ cases are conducted reasonably and proportionately. The steer from the Practice Direction is clear, where limited resources are available to house the parties etc these resources should not be eaten up in legal costs caused by the unreasonable litigation stance of one party and unreasonable litigants even in ‘needs’ cases are at risk of costs orders.

It remains to be seen how the Court will approach such matters but this amendment makes it much clearer to parties that a failure to negotiate reasonably opens them up to adverse costs consequences.

The Family Procedure Rule Committee has also opened up consultation on the question of the treatment of Calderbank (without prejudice save as to costs) offers when determining issues relating to costs. The consultation ends on 31st October 2019 and can be found at:

https://consult.justice.gov.uk/digital-communications/treatment-of-calderbank-offers-consultation/

Nigel Moore and Rupert Chapman take over as Joint Heads of Magdalen Chambers

 

 

 

 

 

 

 

 

 

The members of Magdalen Chambers are delighted to welcome Nigel Moore and Rupert Chapman as the new Joint Heads of chambers with effect 1st June 2019.

Christopher Naish was Head of Chambers at Southernhay Chambers from 2005 and then Joint Head of Chambers with Michael Berkley at Magdalen Chambers following the successful merger with Rougemont Chambers in 2013. Christopher announced he was stepping down as Head following the appointment of Michael Berkley to the Circuit Bench in 2018.

Members of Chambers owe a debt of immense gratitude to both for their hard work and dedication over the years and for providing an excellent foundation for challenges and opportunities in the future.

As Head of the Employment Team, Nigel, called in 1978 offers a wealth of experience and expertise having practiced for over 20 years as a solicitor specialising in employment law in one of Devon and Cornwall’s largest firms of solicitors before joining chambers in September 2011.

Rupert, called in 2000 also joined chambers in 2011 having previously practiced from 1 Garden Court Chambers since pupillage.  He has led the Family Team with enthusiasm and commitment and will bring valuable leadership skills to his new role.

Chambers features consistently as a Leading Set in both the Legal 500 and Chambers & Partners and both Nigel and Rupert are amongst those included in these rankings.

Magdalen Chambers are also delighted to congratulate members who have achieved Full and Part-Time Judicial Appointments this year.

Magdalen Chambers would like to invite applications to join our busy family and civil teams. Applications will be treated in the strictest confidence and should be sent for to our Senior Clerk James Basden james@magdalenchambers.co.uk

Susan Campbell QC welcomed back as a full member of chambers.

Members of Chambers are delighted to welcome Susan Campbell QC back to chambers as a full member. Susan who lives in the Devon, was joint Head of Southernhay Chambers before taking silk and has been an associate member over the past 10 years.

Susan’s practice takes her to courts throughout England and Wales but she finds herself practising often in the West Country where she lives and has a large client base.

Susan has expertise in cases involving serous injury and death to children, factitious illness, and she has a a particular experience in cases involving learned disabled parents. A large part of her practice concerns fact finding hearings relating to emotional harm, sexual abuse and neglect. She also deals with private law cases, cases involving cross-jurisdictional issues and abduction, and matters in the Court of Protection.

Susan has a longstanding link with Pump Court Chambers in London where she continues to have a door tenancy.

Constructive Dismissal: Appealing the Last Straw

Constructive Dismissal: Appealing the Last Straw

Can the rejection of an appeal against a final written warning constitute a ‘last straw’ for the purposes of a constructive dismissal claim? Not in the case of Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978, where the Court of Appeal determined that “such a process, properly followed…cannot constitute a repudiatory breach of contract, or contribute to a series of acts which cumulatively constitute such a breach.”

The appellant in this case had been involved in an altercation with a colleague and raised a grievance over the matter. This triggered disciplinary proceedings against her which were conducted by way of a combined grievance/disciplinary procedure. The outcome was a final final written warning against the appellant for inappropriate behaviour. She appealed this sanction, but due to a period of maternity leave and various other factors, the appeal was not concluded until some 15 months after the incident. When the appeal was finally rejected, the appellant brought a claim for constructive unfair dismissal, claiming that the rejection of her appeal was the last straw in a series of acts which, taken together, amounted to a breach of the implied term of trust and confidence.

The employer successfully applied to strike out her claim. The judge at first instance decided that the disciplinary process and its outcome were unarguably reasonable and so there was no reasonable prospect of the appeal outcome constituting a ‘last straw’. On appeal, the EAT recognised a complication arising from the authority of Addenbrooke v Princess Alexandra Hospital NHS Trust UKEAT/0265/14, which had stated, ‘if there is subsequently conduct which, taken together with the employer’s earlier fundamental breach, causes the employee to resign or plays a part in the decision of the employee to resign, the later act effectively reactivates the earlier fundamental breach’. Although the appeal was dismissed, the Court of Appeal granted leave to appeal so as to properly review the ‘last straw’ doctrine and its interaction with the re-activation of ‘waived’ or ‘affirmed’ breaches.

The Court of Appeal this week dismissed the appeal and affirmed the well-known earlier decision of the Court of Appeal in London Borough of Waltham Forest v Omilaju [2005] ICR 481. The pertinent part of Lord Justice Dyson’s judgment in that case was cited in full as follows,

“19. … The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase ‘an act in a series’ in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant. 

  1. I see no need to characterise the final straw as ‘unreasonable’ or ‘blameworthy’ conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred.
  1. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle. [Emphasis supplied]”

Effectively therefore, if the conduct complained of is continued by a further act or acts, in response to which an employee resigns, they can still rely on the totality of the conduct in order to establish the necessary fundamental breach. The obvious observation otherwise is that “it would be extraordinary if, by failing to object at the first moment that the conduct reached the Malik threshold, the employee lost the right ever to rely on all conduct up to that point.”

That being the case however, Underhill LJ agreed that the appeal outcome in the instant case was incapable of forming part of a cumulative breach. Had the conduct of the disciplinary process been seriously unfair, a tribunal would very likely have held that that was a sufficient repudiatory breach in itself, without the need to refer back to events of a different character some time previously. The appellant was – of course- entitled to believe the outcome to be wrong; but the true test is objective, and a fair disciplinary process cannot, viewed objectively, destroy or seriously damage the relationship of trust and confidence between employer and employee simply because the outcome was not desired by the employee.

For cases of constructive dismissal therefore, legal advisers (and tribunals) should ask themselves the five questions posed by Underhill LJ as follows:

(1)              What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?

(2)              Has he or she affirmed the contract since that act?

(3)              If not, was that act (or omission) by itself a repudiatory breach of contract?

(4)              If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? If it was, there is no need for any separate consideration of a possible previous affirmation.

(5)              Did the employee resign in response (or partly in response) to that breach?

As Underhill LJ observed although none of the questions are conceptually problematic in and of themselves, “answering them in the circumstances of a particular case may not be easy.” The Magdalen Chambers employment team are on hand to assist for those difficult cases.

The on-going process of reform – Financial Remedies Courts

Although there has been much reform of the processes and procedures in the family justice system in recent years, there is one area in which little has been done and much needs to be done: financial remedies. Some of its failings were exposed by the Law Commission in its 2014 report, ‘Matrimonial Property, Needs and Agreements’, Law Com No 343. They need to be remedied.

https://www.judiciary.gov.uk/wp-content/uploads/2014/08/view-from-the-president-of-family-division-20180123.pdf

Case law update: Placement with adopted siblings

Last week the Court of Appeal gave judgement in Re B (A child) [2018] EWCA Civ 20 this was an unusual but interesting adoption case where the court had to weigh up the importance of a potential relationship with a full sibling who had already been adopted against placement with a family member.

The proceedings related to a little girl, B, who was born in the spring of 2016. B had an elder full brother, H, who was born in 2015 and was adopted in 2016. The essential issue before the judge was whether B should be placed with H’s adoptive parents or with her father’s cousin.

H’s adoptive parents were not party to the proceedings, the reason for this was as stated by Sir James Munby in Re T (A Child) (Early Permanence Placement) [2015] EWCA Civ 983[2017] 1 FLR 330:

“The care judge is concerned at most with consideration of adoption in principle, not with evaluating the merits of particular proposed adopters. There is no need for the prospective adopters to be joined, for it is the children’s guardian … who has the task, indeed is under the duty, of subjecting the local authority’s care plan to rigorous scrutiny and, where appropriate, criticism.”

In Re B the trial judge considered Re T which she distinguished on the basis that the facts before her were sufficiently different. In Re T the potential adopters had also been the child’s foster carers whereas in the instant case H’s adoptive parents had no pre-existing relationship with B.

Her Honour Judge George, whose decision was upheld on appeal stated that “a degree of comparison between the options before the court is unavoidable in seeking to establish what [B]’s welfare needs are and how they can best be met. That inevitably happens when the court weighs up the pros and cons of each option. However, as I hope this judgement will show, it is the principle of adoption that the court is considering in the particular facts of this case, not choosing the better of two alternative placements.” She went on to say “the court must undertake the necessary balancing exercise, but in the knowledge that the adoption placement whilst still being considered in principle holds [H]” She reminds herself that the court is carrying out a holistic global analysis of the pros and cons or each option.

The fathers appeal was dismissed.

Joint Head of Chambers, Michael Berkley is appointed as a Circuit Judge

Chambers are delighted to announce the elevation of Michael Berkley to the Circuit Bench. He has been appointed to sit as a Civil Judge based in Salisbury, but will be covering the whole eastern region of the Western Circuit. He will be formally sworn in at a ceremony before the Master of the Rolls at the Royal Courts of Justice on 5th February 2018.

Michael has given his inspiring and unstinting dedication to jointly leading chambers, with Christopher Naish, since the formation of Magdalen in 2013, for which chambers owes a debt of gratitude. Prior to the merger that brought about Magdalen, Michael had established, and headed, Rougemont Chambers from 1997 as the leading Civil set of chambers in Exeter.

His colleagues and clerks – his professional family – congratulate Michael on his fantastic achievement. We are immensely proud and wish him well in his future career, as we are sure do all of his former clients.

Exeter Family Court Clinic Needs you!

The Exeter Family Court Clinic (or EFCC) was launched in May 2017 to provide limited free support to LiPs. We need more volunteers to help with this new initiative.

The clinic runs monthly at the Exeter Combined Court offering legal advice and support to LiPs involved in child arrangements or domestic violence proceedings by means of short pre-booked appointments. It is not extended to cover LiPs in financial remedy or care proceedings and does not involve court representation.

The aim of the clinic is to help prepare LiPs for hearings and raise awareness of how the Family Court works.

The development of the clinic has been driven by barristers and solicitors, who work in partnership with the Personal Support Unit (PSU) in Exeter and the Bar Pro Bono Unit.

At present we have 23 lawyers signed up, volunteering at least a half-day a year to the scheme but due to the demands of the service, we need more!

If you are a family solicitor, legal executive or barrister of over 1 years PQE and would like to support the clinic, please contact Carol Mashembo, Magdalen Chambers on 01392 285200 or email cmashembo@magdalenchambers.co.uk

We are having an EFCC stand at Exeter Combined Court on 8th November 2017 during Pro Bono Week. Please come and say hello!